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University of New South Wales Law Journal Student Series |
CONCEPTUALLY DIFFERENT, PRACTICALLY THE SAME?
IMPACT OF THE GLOBAL COMPACT ON REFUGEES AND COMPLEMENTARY PATHWAYS ON EXPANDING
DURABLE SOLUTIONS
NICOLE SUNG
I INTRODUCTION
Durable solutions, traditionally conceived as voluntary repatriation, local integration and resettlement,[1] enable refugees to live in safety and rebuild their lives.[2] Yet the inadequacy of the traditional durable solutions is illustrated by the 26.4 million refugees worldwide,[3] with the typical refugee displacement lasting about twenty years.[4] In response to the evident need to strengthen and enhance refugee protection mechanisms, the UN General Assembly unanimously adopted the New York Declaration[5] in 2016, paving the way for the Global Compact on Refugees (‘GCR’),[6] affirmed in 2018. Under the GCR, Member States committed to expand ‘complementary pathways’ to protection and solutions for refugees.[7] This essay explores how the GCR and complementary pathways conceptually expand the solutions available to refugees but are practically limited by longstanding financial, institutional and political barriers. Part II of this essay sets out the three traditional durable solutions and their shortcomings, finding that the traditional durable solutions are inaccessible to many refugees. Part III explores two recent developments on durable solutions, namely the GCR and complementary pathways. Part IV explores how these recent developments impact the solutions available to refugees, concluding that although they constitute a conceptual expansion, practical constraints mean these recent developments simply preserve existing norms.
II WHAT ARE DURABLE SOLUTIONS?
Durable solutions envision more permanent protection for refugees and aim to enable refugees to become self-sufficient[8] and rebuild their lives. Traditionally conceived, durable solutions comprise voluntary repatriation, local integration and resettlement.[9] Although the Refugee Convention[10] does not explicitly articulate the concept of durable solutions per se, protecting refugees and seeking solutions to refugee problems are mandatory functions of UNHCR,[11] with the UNHCR Statute[12] mandating UNHCR with the task of ‘seeking permanent solutions for the problem of refugees’.[13]
A Voluntary Repatriation
Voluntary repatriation involves refugees returning to their country of origin of their own free will when the cause of their displacement abates.[14] For example, over one million African refugees were voluntarily repatriated during the 1960s and 1970s when conflict abated in the wake of national liberation struggles in their countries of origin.[15] Voluntary repatriation is the only durable solution which imposes an absolute obligation on any State. [16] It is the preferred solution among most States in the majority of refugee situations.[17] Goodwin-Gill and McAdam suggest that this preference is perpetuated by States’ self-interest.[18]
The voluntary nature of this durable solution derives from the principle of ‘safe return’ implicit in Article 1(c) of the Refugee Convention.[19] Voluntariness is rooted in the refugee’s free and informed individual decision[20] of when and whether to go back to their country of origin.[21] In practice, however, repatriation attempts can be involuntary in nature, as exemplified by Bangladesh’s numerous attempts to repatriate the Rohingya, which amounted to refoulement.[22] Ongoing destabilisation in refugees’ countries of origin means voluntary repatriation is an elusive solution for most refugees,[23] especially when conflict is driven by independent armed groups which UNHCR has no bargaining power over.[24] Additionally, with the COVID-19 pandemic causing most countries to partially or completely close their borders,[25] voluntary repatriation is further rendered a largely inaccessible solution.
B Local Integration
Local integration is the legal, economic and social process[26] of refugees finding a home in the country of first asylum and living among the host population without fear of discrimination.[27] As local integration allows refugees to attain a degree of self-reliance, it may therefore offer a durable solution for cases where repatriation is not viable. It usually occurs via issuing a short-term visa, which may then be followed by the granting of more permanent residence rights and citizenship in the receiving (usually industrialised and wealthy) State.[28] Importantly, as part of the exercise of State sovereignty, there is no State obligation to offer or facilitate local integration.[29] However, as the Refugee Convention envisages the importance of the role of granting citizenship to refugees,[30] this suggests local integration is implicit in the duty to implement treaty obligations in good faith.[31]
The promise of local integration applies to relatively few refugees in protracted situations.[32] Only 1.1 million refugees have been locally integrated over the past decade: a disproportionately small amount in comparison to the 26.4 million refugees worldwide. [33] Governmental and societal resistance to the local integration of refugee populations stems from real and perceived security threats,[34] racial, ethnic or religious tensions,[35] as well as views that refugees impose economic and environmental burdens.[36] The viability of local integration is contingent on the attitude of host governments and the commitment of the donor community to provide additional assistance,[37] as exemplified by Bangladesh’s categorical opposition to the local integration of Rohingya rendering any possibility of local integration unachievable.[38] Over the past decade, industrialised States have demonstrated an aversion to pursuing local integration, with its connotation of permanence,[39] instead favouring repatriation or resettlement. This is demonstrated by States’ policies to repatriate refugee populations at the earliest opportunity,[40] rather than proactively expanding access to the legal, economic and social avenues necessary for local integration.
C Resettlement
Resettlement involves the transfer of refugees from an asylum country to another State that has agreed to admit them and ultimately grant them permanent residence.[41] UNHCR is mandated by its Statute to undertake resettlement as a durable solution for refugees.[42] Although resettlement was initially intended for individual protection cases for refugees unable to return home or remain in their country of immediate refuge, [43] after the turn of the century, the reality of protracted refugee situations prompted UNHCR and the international community to reconsider the importance of resettlement as a durable solution, particularly for groups. [44] UNHCR’s Three-Year Strategy reflects the reinvigorated commitment since 2016 from over 90 stakeholders to scale up resettlement programmes.[45]
Similar to local integration, resettlement is neither a right of refugees nor an enforceable State obligation.[46] Betts characterises the legal and normative framework of resettlement within international refugee law as ‘weak’,[47] which is reflected by the fact resettlement is available to less than one per cent of refugees globally.[48] Wealthier countries in particular have demonstrated a strong disinclination to open their borders to refugee resettlement, perpetuating the system of containment of refugees in the Global South.[49]
D Shortcomings of Traditional Durable Solutions
At the end of 2020, 76 per cent of refugees were in exile for at least five consecutive years.[50] The sheer number of people presently in protracted refugee situations illustrates the failure of the traditional durable solutions in the current geopolitical context.[51] In addition to the individual shortcomings of each durable solution as explored above, the traditional tripartite conception of durable solutions faces significant challenges at a more general level. Conceptually, Bradley articulates how the failure to clarify the aims of the durable solutions process and the conditions under which these solutions can be unlocked is a major shortcoming which threatens the rights, dignity and wellbeing of refugees.[52] Similarly, Betts emphasises the need to scrutinise the aims and objects of durable solutions and specify them with precision, noting that, for example, resettlement is not inherently benevolent due to its unspoken migration management function which legitimates certain forms of refugee entry while delegitimating others.[53] Practically, in light of current protracted refugee situations in States like Kenya, UNHCR has deemed the traditional approach to durable solutions as failing to constitute long-term solutions.[54] Clearly, further developments are needed in order to expand the solutions available to refugees.
III RECENT DEVELOPMENTS ON DURABLE SOLUTIONS
A Global Compact on Refugees
Durable solutions for refugees cannot be attained by any State individually, nor by UNHCR alone.[55] Instead, they require systematic collaboration with a variety of stakeholders including UNDP, the World Bank, State governments, humanitarian organisations and development agencies.[56] Building on this premise and aligning with the UN’s spirit of international cooperation,[57] the Global Compact on Refugees (‘GCR’) was affirmed in December 2018, following the 2016 New York Declaration. The GCR builds on a longstanding body of law relating to responsibility-sharing among States in large-scale refugee situations.[58] This responds to the Refugee Convention’s express recognition that granting asylum is inherently inequitable as it places ‘unduly heavy burdens on certain countries’,[59] and builds upon the emphasis on burden-sharing, solidarity and international cooperation in the OAU Refugee Convention. [60]
The GCR has four key objectives: to ease the pressure on host countries, enhance refugee self-reliance, expand access to third-country solutions, and support conditions in countries of origin for return in safety and dignity.[61] It encapsulates the need to operationalise burden- and responsibility-sharing by taking a multi-stakeholder and partnership approach.[62] The GCR’s functions include activating a support platform and facilitating greater humanitarian and development cooperation, with an emphasis on solutions.[63]
The GCR recognises further dimensions to the traditional tripartite conception of durable solutions, namely ‘other local solutions’ and ‘complementary pathways for admission to third countries’.[64] In doing so, the GCR envisions a broader range of more nuanced possibilities and opportunities beyond voluntary repatriation, local integration and resettlement. Such possibilities include leveraging avenues in regional mobility arrangements as well as in the nexus between migration and development.[65] Although the GCR is not necessarily a radically different system for the equitable global distribution of refugees,[66] Garlick and Inder articulate how the GCR contains ‘realistic yet significant potential to mobilise greater support for countries most affected by large-scale refugee situations...if implemented by States and other stakeholders robustly and in good faith’.[67]
Although its provisions extend to all UN Member States,[68] the GCR is a soft law instrument and not legally binding,[69] containing voluntary guidelines and principles for States and non-governmental organisations.[70] Its non-binding nature reflects UNHCR’s involvement in ‘a very delicate balancing act in discerning where it could push, and where it could not’[71] in the drafting of the GCR. Arguably, the GCR’s importance lies in its implied normative force[72] and potential as a guiding document to mobilise political will, broaden the support base for refugee solutions, and outline measures to facilitate more equitable and predictable burden- and responsibility-sharing.[73]
The Comprehensive Refugee Response Framework (‘CRRF’) is the operational framework of the GCR,[74] intended to be a blueprint for ‘bringing the New York Declaration to life’.[75] The CRRF provides a template for combining tools for operationalising responsibility-sharing among stakeholders, tailored in response to particular refugee situations.[76] Khan and Sackeyfio articulate the CRRF’s potential to strengthen the ability of host countries to cope with increasing numbers of refugees.[77] Underpinning the CRRF is the GCR’s concrete Programme of Action, which reinforces the application of comprehensive responses.[78]
The GCR established a periodic Global Refugee Forum which occurs at the ministerial level, first held in December 2019 and held every 4 years.[79] At the Global Refugee Forum, stakeholders convene to announce concrete pledges and contributions towards the GCR’s objectives.[80] As of August 2021, from approximately 1500 pledges recorded in the GCR’s digital platform, just over 100 have been fulfilled,[81] upwards of the 22 that were fulfilled in the previous year.[82]
B Complementary Pathways
Complementary pathways for the admission and stay of refugees can take many different forms,[83] including humanitarian admission, community sponsorship, family reunification and third country work or education opportunities.[84] In order to expand refugees’ access to durable solutions, complementary pathways must operate in addition, not as an alternative, to existing refugee places provided by governments, as emphasised by Wood[85] and Hoang[86]. Similarly, van Selm views the relationship between complementary pathways and the three traditional durable solutions through the lens of additionality, noting complementary pathways potentially provide a ‘springboard to long-term resettlement programs’.[87]
Complementary pathways are premised on refugee autonomy and self-reliance.[88] In contrast to the three traditional durable solutions, they aim to enable refugees ‘to exercise control over their own solutions by empowering refugees to independently access publicly available information and processes’.[89]
Examples of complementary pathways include protected entry schemes which allow a person to apply for protection from another country from within their country of origin.[90] Such bespoke schemes include Italy’s ‘Humanitarian Corridors’, established by a coalition of faith-based organisations in collaboration with the Italian government.[91] Talent Beyond Boundaries (‘TBB’) is another example of an organisation which aims to increase availability of solutions for refugees via complementary pathways. Premised on the recognition that labour mobility could provide pathways to safety for over 1 million refugees over the next decade,[92] TBB works with governments to open up labour mobility pathways for displaced people. After collecting empirical data on refugees’ professional backgrounds via an online ‘Talent Catalog’, TBB matches refugees with potential employment opportunities, provides job interview preparation and facilitates visa, relocation and settlement arrangements.[93] In 2020, the Australian government agreed to a two-year Skilled Refugee Pilot in partnership with TBB to offer employment and permanent skilled visas to 100 skilled refugees and their families.[94] In Japan, private sponsorship of UN-recognised Syrian refugees[95] is an example of a complementary pathway premised on education opportunities. Examples include the Japanese Initiative for the future of Syrian Refugees and the Japan ICU Foundation Scholarship, which leverages the support of Japan’s ‘notably philanthropic’[96] private sector.
The recent developments of the GCR and complementary pathways certainly appear to provide solutions which move beyond ‘the current gridlock of the state-centric paradigm of refugee admission’.[97] The following section will explore whether these recent developments actually expand the solutions available to refugees, first through a conceptual lens, and second, in terms of their practical impact.
IV DO THESE RECENT DEVELOPMENTS EXPAND THE SOLUTIONS?
Despite their conceptually different nature, the GCR and complementary pathways practically maintain the status quo, due to various financial, institutional and political factors which limit their impact.
A Conceptual Expansion
The GCR disrupts the traditional conceptual framework of durable solutions by articulating a further dimension of ‘other local solutions’[98] and complementary pathways for admission to third countries.[99] In doing so, the GCR represents a global recognition that the international refugee system requires change.[100]
1 Refugee Movements as Development Opportunities
The GCR conceptually expands the solutions available to refugees by calling for ‘a broader and more comprehensive perspective’,[101] which opens up a range of more nuanced possibilities including exploring opportunities in the link between migration and development.[102] In doing so, Garlick notes how the GCR frames refugee movements as a development issue, as opposed to a humanitarian problem to be overcome.[103] Similarly, Khan and Sackeyfio observe how the GCR is underscored by a human rights approach and the narrative of sustainable development,[104] shifting the conceptual framework to one that is more conducive of producing robust and tangible solutions.[105] Dick and Rudolf describe the GCR’s vision of greater coordination between short-term emergency aid and long-term development as a significant conceptual expansion of the GCR, one that represents an ‘overdue paradigm shift in refugee policy at the highest level’.[106] This conceptual reframing of protracted refugee situations as development opportunities is not only explicit in the GCR,[107] it is further exemplified by the labour and education pathways envisioned as complementary pathways, and evident in States’ responses to the GCR and CRRF. For example, Kenya’s Comprehensive Refugee Programme, developed in the wake of the GCR, establishes context-specific complementary pathways and a plan of action explicitly premised on the ‘interactive dynamism and underlying potential of development-oriented interplays between refugees and host communities’.[108]
2 Strengthened Burden- and Responsibility-Sharing
By positing that refugees are ‘a common concern of humankind’,[109] the GCR uses significantly strengthened burden-sharing language compared to previous refugee instruments and frameworks,[110] amounting to a conceptual expansion. In contrast, Gammeltoft-Hansen suggest the GCR’s main impact is likely no more than a reaffirmation of the status quo.[111] Hathaway presents an even more scathing critique of the GCR’s ‘thin’ and ‘unambitious’ nature.[112] However, at least on a conceptual level, the GCR expands the solutions available to refugees through its characterisation of refugees as ‘integrated, contributing, and rights-holding members of host countries and communities’[113] and its conceptual emphasis on more predictable and equitable burden- and responsibility-sharing.[114]
3 Multi-stakeholder Approach
Finally, the GCR conceptually expands the solutions available to refugees by explicitly adopting a multi-stakeholder approach.[115] This is not conceptually different per se (the Refugee Convention, for example, enshrines the importance of international collaboration),[116] yet, the GCR does involve a ‘far broader range of stakeholders than has traditionally been the case in refugee protection’[117] including international and regional financial institutions, faith-based actors, academics and other experts, the media and importantly, refugees themselves.[118] The GCR, at least conceptually, empowers refugees to have a voice where it matters most,[119] as exemplified by the 70 refugees and numerous refugee-led organisations invited to speak at the inaugural Global Refugee Forum.[120] By meaningfully opening up access to consultative processes, the GCR, at least conceptually, expands the solutions available to refugees.
In stark contrast to Hathaway’s view of the GCR as a tepid ‘cop-out’ which does not fundamentally alter the existing conceptual framework,[121] Gilbert characterises the GCR as a ‘radical new departure to responding to forced displacement across borders’.[122] On a conceptual basis, the GCR and complementary pathways reframe refugee movements as development opportunities, emphasise greater international solidarity and burden- and responsibility-sharing, and adopt a robust multi-stakeholder approach. This certainly appears to develop the traditional conception of durable solutions. However, determining whether these conceptual developments genuinely expand the solutions available to refugees, or merely amount to ‘rhetorical reorientation at the global level...fall[ing] short of real structural change’,[123] warrants consideration of practical constraints.
B Practical Constraints
In contrast to the way the GCR and complementary pathways clearly expand the existing conceptual framework, the practical impact of the GCR will take much longer to ascertain.[124] UNHCR’s goal to have 1 million refugees resettled and 2 million benefitting under complementary pathways by the end of 2028[125] is subject to significant practical limitations. This section examines the financial, institutional and political constraints currently preventing refugees from accessing durable solutions.[126] As the GCR and complementary pathways do not fundamentally alter these underlying practical constraints, they consequently do not practically expand the solutions available to refugees.
1 Financial Limitations
The practical reality of any solution for refugees is that ‘funding is at the core of the matter’.[127] Financial support is characteristically difficult to maintain, with UNHCR ‘chronically suffer[ing] from budget shortages’,[128] receiving only around half of its annual budget based on globally assessed needs.[129] This severely curtails UNHCR’s ability to provide effective support to refugee groups. Insufficient financial resources is consistently cited as a major reason for the ‘enforcement gap’ between States’ commitments to refugee solutions and their practical implementation.[130] This is heightened by the fact that developing countries host 86 per cent of the world’s refugees,[131] making the financial burden particularly onerous in mass influx situations.[132] Without significant and ongoing financial support, it is simply unfeasible for developing countries to offer solutions that meet refugees’ essential needs and rights.[133]
The GCR envisions the sharing of burdens and responsibilities through financial,[134] humanitarian[135] and infrastructure[136] support. However, the viability of the GCR and complementary pathways, like all initiatives aimed at supporting refugees, ultimately depends on the availability of sufficient public and private sector funds.[137] Without the means to guarantee such financial support, the GCR does not practically expand the solutions available to refugees. For example, the Kalobeyei Development Phase I in Kenya, launched in response to the GCR and CRRF, is budgeted at $500 million for the next 5 years. Its successful operationalisation is contingent on aggressive fundraising and comprehensive coordination structures.[138] The GCR fails to ensure this on a concrete and binding basis.
Although the GCR envisions financial support[139] as a means of burden- and responsibility-sharing through the Global Refugee Forum’s designated call for donations,[140] the GCR’s narrow scope shies away from concrete commitments regarding financial burden-sharing.[141] Encouraging pledges, contributions and good practices in areas including more financial, material and technical support to host countries[142] is worthwhile, and yet, the non-legally binding[143] nature of the GCR means the practical impact of doing so is questionable. Despite the Global Refugee Forum raising $3 billion from multilateral development agencies and $250 million from private sources, much of this was derived from repackaging existing funds and is far off from meeting long-term financial needs.[144] States’ voluntary contributions under the GCR does not meaningfully shift the funding paradigm, simply maintaining the status quo where funding is significantly underprovided.[145] Without rectifying the significant free-riding behaviour of economically smaller and less democratic States, budgetary difficulties of UNHCR and other organisations will continue to impede access to solutions for refugees.[146] As Gleichert articulates, the voluntary nature of commitments made in the name of the GCR will not change the funding mechanisms that have created a $6 billion deficit in UNHCR’s budget.[147] Hathaway envisions that to truly expand refugees’ access to solutions, ‘the required funds [must] be guaranteed ... with funds raised under a common burden-sharing formula’.[148]
The practical challenge of inadequate and unpredictable funding also limits the scale of complementary pathways, constraining the impact of their operations.[149] For example, only 16 refugees have accepted job offers through TBB with employers in Australia[150] and the Japanese Initiative for the future of Syrian Refugees offers places for a maximum of 20 participants per year.[151] This reflects the direct relationship between budgetary constraints and the availability of solutions for refugees to rebuild their lives.
At best, financial constraints will oblige UNHCR and partners to revise activities and resources and re-prioritise needs, depending on funding levels.[152] At worst, financial limitations will render the GCR a deemed failure along the lines of the 1981 and 1984 International Conferences on Assistance to Refugees in Africa which ultimately failed due to the Global North’s limited financial contributions.[153] The disjuncture between the conceptual expansion of solutions on offer for refugees, and the practical reality of inadequate financial support for the GCR and complementary pathways, is exemplified by Zambia’s desperate calls for increased financial support to fund their new Mantapala settlement which was established in the wake of Zambia’s commitment to the CRRF.[154]
2 Institutional Shortcomings
UNHCR and regional, national and civil society institutions face constraints and limitations which hinder the practical ability of the GCR and complementary pathways to meaningfully expand the solutions available to refugees.
Despite the central role of UN agencies in supporting intergovernmental coordination,[155] UNHCR’s institutional design limits refugees’ access to durable solutions. UNHCR’s key institutional constraints relate to its funding structure and its inability to compel States’ action.[156] The majority of UNHCR’s funding comes from developed States,[157] which may undermine its independence in policing the efforts of these States[158] in upholding their responsibilities under the GCR, especially given the non-legally binding nature of the GCR. For example, donor governments significantly reduced their contributions to UNHCR’s annual operating budget in Tanzania due to various foreign policy concerns,[159] highlighting how UNHCR’s dependence on voluntary donations from the Global North compromises its practical ability to provide solutions for refugee protection. Further, UNHCR’s role as the main provider of critical emergency in times of displacement,[160] coupled with the fact it cannot compel States to uphold their commitments under international instruments, disincentivises States from creatively and courageously developing long-term solutions to protracted refugee situations.
On a regional level, institutional limitations hinder practical expansion of solutions available to refugees, as exemplified by the European Union (‘EU’). Kalicki notes how the 2015 migration crisis revealed how cooperation within the EU hinges on the willingness of national elites.[161] This is especially problematic given that weak institutionalisation of burden-sharing mechanisms creates an unfair allocation of refugees within the EU itself,[162] which undermines the EU’s pledge in the GCR’s digital platform to ‘enhance financial and operational support to the EU Member States experiencing migratory pressure’.[163] This institutional limitation, whereby Member States have few incentives to contribute to the public good of strengthening refugee protection,[164] therefore enables the shifting of responsibilities and perpetuates ‘patterns of shirking’.[165] Eylemer and Söylemez note that the EU’s institutional shortcomings arise from the fact its normative principles like solidarity and burden-sharing are undercut by Member States’ self-interested motives.[166] Similarly in the ASEAN institutional context, Tubakovic argues that ‘regardless of the level of institutionalisation of refugee norms and practices...procedural norms privileging member state interests have hindered the development of durable regional refugee policies’.[167] Furthermore, Betts posits that ‘institutional proliferation’ enables States to engage in ‘regime shifting,’[168] using alternative institutions like the EU to implicitly reallocate burdens onto the Global South without explicitly violating their principal legal obligations. Arguably, this issue is further compounded by the GCR’s non-legally binding nature. Appleby characterises the global refugee crisis as ‘a crisis of institutionalised responses’,[169] and with neither the GCR nor complementary pathways capable of addressing these regional institutional limitations, these recent developments merely uphold the status quo.
On a national level, institutional weaknesses also undermine refugees’ access to durable solutions. For example, Kenya’s Comprehensive Refugee Programme, devised in response to the GCR and CRRF, explicitly recognises how weakened institutional and technical capacities at national and county governance levels hinder solution implementation. [170] Suboptimal resource mobilisation, financial management and organisational learning are limitations which constrain national institutions from practically expanding solutions under the GCR and complementary pathways. Moreover, Khan et al articulate how the pervasion of xenophobia in public institutions, such as recorded instances of discrimination towards refugees in South Africa’s public hospitals and schools,[171] exacerbates the already dire situation where refugees must navigate the complex institutional landscape of a foreign country, including securing housing, healthcare, employment, education and access to justice.[172]
Civil society organisations which provide complementary pathways for admission are also challenged with institutional shortcomings which jeopardise the efficacy of their work in expanding solutions available to refugees. For example, underlying the significant work of Italy’s ‘Humanitarian Corridors’ scheme[173] is a degree of limited transparency regarding refugees’ selection into the scheme. The fact that staff from faith-based organisations are tasked with the refugee interview and selection process[174] raises questions as to whether increased access to safe and legal pathways into host countries is practically increased to all refugees, or only to certain refugees meeting undisclosed or implicit criteria, such as religious belief.
Hence, institutional weaknesses across various levels practically limit access to durable solutions for refugees. The GCR and complementary pathways do not redress these shortcomings and thus their practical impact in expanding solutions available to refugees is limited.
3 Political Factors
Developing solutions for refugees is an inherently political task, as ‘making decisions about who is a refugee and how they should be protected are value-laden political judgments’.[175] Galvanising political commitment and advocacy is essential for ensuring the viability of the GCR and complementary pathways,[176] however, this is constrained by political factors, namely the political situations in host countries and countries of origin, as well as fluctuating political will among the broader international community.
The political situations in host countries and countries of origin practically hinder the solutions available to refugees. Alam vividly articulates how the ‘political actions and inactions of Myanmar and the host countries’[177] fuel the protracted suffering of the Rohingya, demonstrating how political contexts dictate the (un)availability of durable solutions for refugees. Similarly, UNHCR explicitly recognises how host countries’ political situations directly impact the ability to practically implement solutions, as demonstrated by the politically-charged limitations on refugees’ mobility and land access in Kenya’s Dadaab Refugee Complex.[178] Furthermore, xenophobia within host countries, often exacerbated during political campaigns,[179] entrenches political barriers which hinder refugees’ practical access to durable solutions. The GCR and complementary pathways are powerless to change the political contexts dictating the realities of refugees in host countries and countries of origin.
Complementary pathways also face ongoing political challenges in host countries and countries of origin, limiting the ability of refugees to meaningfully access durable solutions. For example, the Japanese Ministry of Justice’s Immigration Bureau has historically prioritised border control and security concerns over refugee protection, jeopardising refugees’ practical access to private sponsorship as a complementary pathway to admission in Japan.[180] Turkey offers another illustrative example of how political factors practically obstruct access to solutions for refugees. Turkey’s political context ‘categorically opposes rights-based advocacy of any marginalised group’.[181] Practically, this curtails the power of refugee-led community organisations, which serve as alternative providers of refugee protection and assistance,[182] providing vital channels of empowerment and alleviation of the suffering of fellow refugees.[183] This highlights the stark disparity between the practical restrictions faced by refugees, and the GCR’s expanded conceptual framework, which envisions the growth of complementary pathways and is premised on ‘a comprehensive and people-centred response to large refugee situations, adapted to the specific context’.[184] The GCR’s reliance on ‘strengthened cooperation and solidarity with refugees and affected host countries’[185] fails to account for the realities of host countries’ overt antagonism or implicit resistance towards refugees. Consequently, the recent developments of the GCR and complementary pathways, although conceptually different, do not alter the political realities in host countries and countries of origin, rendering barriers to refugees’ access to solutions practically the same.
Fluctuating political will among the broader international community further limits the GCR and complementary pathways’ practical ability to expand the solutions available to refugees. Although the GCR expressly affirms itself as a representation of political will and ambition,[186] rapidly changing political environments lead to ad hoc international cooperation[187] characterised by national self-interest, shifting strategic priorities and ‘compassion fatigue’ by the Global North.[188] Depending solely on the goodwill of the international community is especially problematic as demonstrated by the ‘sheer lack of political will’[189] for refugee solutions in Africa. Liberal democracies, preoccupied with national selfhood and domestic electoral constraints,[190] display a persistent reluctance to create new pathways for the admission of refugees on a large scale, despite the GCR’s calls for more equitable sharing of the burdens and responsibilities associated with hosting and supporting refugees.[191]
The political unwillingness of the international community is highlighted by the Global North’s continuing implementation of deterrence measures towards refugee movements,[192] including Australia’s deliberate efforts to prevent refugees from reaching its jurisdiction.[193] States like Austria, driven by populist or nativist politics, have ‘closed all doors to asylum-seekers’.[194] The United States, which, despite being UNHCR’s top government donor,[195] did not adopt the GCR,[196] with the Trump administration significantly cutting refugee resettlement quotas by 40 per cent for the fiscal year 2020.[197] Similarly, a politically expedient deal led to Germany’s Chancellor Angela Merkel to renege on her strong commitment to integrating migrants into German society.[198] The conceptual expansion of recent developments like the GCR and complementary pathways are rendered meaningless unless States’ fluctuating political will and underlying aversion to robust political commitment is redressed.
The non-legally binding nature of the GCR reflects its drafting history, where the dominant view among the Global North was that the GCR should not create new legally binding international obligations.[199] Clearly, the GCR’s robustness is heavily compromised by its appeal to privileged States.[200] Since ‘the effectiveness of non-binding instruments lies in whether nations are committed to implementing them in a timely manner’,[201] the purely voluntary nature of the GCR simply preserves the unpredictability of States’ political will, which fluctuates based on ‘discretionary prerogatives’.[202] Importantly, Boucher and Gördemann articulate how the GCR’s voluntary responsibility-sharing coupled with the mandatory observance of non-refoulement means the majority of the burdens and responsibilities of hosting and protecting refugees continue to be shouldered by neighbouring countries in the Global South.[203]
The GCR’s Programme of Action outlines over 50 paragraphs of potential pledges and contributions[204] and as of August 2021, over 1500 pledges are recorded in the GCR’s digital platform.[205] Yet the gap between political commitment and reality is stark, with current or future initiatives under the GCR and CRRF ‘subject to a multiyear planning and implementation cycle’.[206] The significant timespan between States’ expressions of commitment and actual implementation exposes potential solutions to ebbs and flows in political will, severely undermining capacity building and programme continuity.[207] This is exacerbated by COVID-related disruptions which have impacted many entities’ ability to implement their pledges made at the Global Refugee Forum, as originally planned.[208]
Political contexts of host countries and countries of origin, as well fluctuating political will among the international community more broadly, mean that despite the conceptual developments of the GCR and complementary pathways, the solutions available to refugees are not practically expanded. As Harley expresses, the issue at hand is not a lack of options or ideas, but rather, the lack of political will to pursue them.[209]
V CONCLUSION
The GCR and complementary pathways expand the existing conceptual framework of durable solutions by framing refugee movements as development opportunities, articulating the need for more equitable and predictable burden- and responsibility-sharing, and adopting a strengthened multi-stakeholder approach. However, the GCR and complementary pathways do not guarantee adequate and predictable financial commitment, fail to rectify institutional weaknesses, and are subject to the changing politics of States. Hence, despite the conceptual expansion brought by these recent developments, practical limitations constrain their impact in expanding the solutions available to refugees. Unless the GCR catalyses fundamental change to address underlying financial, institutional and political shortcomings, the net effect of these recent developments, no matter how conceptually different, is simply to preserve existing norms.
VI BIBLIOGRAPHY
A Articles/Books/Reports/Papers
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Appleby, Kevin ‘Strengthening the Global Refugee Protection System: Recommendations for the Global Compact on Refugees’ (2017) 5(4) Journal on Migration and Human Security 780
Betts, Alexander, ‘Institutional Proliferation and the Global Refugee Regime’ (2009) 7(1) Perspectives on Politics 53
Betts, Alexander, ‘Resettlement: where’s the evidence, what’s the strategy?’ (2017) 54 Forced Migration Review 73
Boucher, François and Johanna Gördemann, ‘The European Union and the Global Compacts on Refugees and Migration: A Philosophical Critique’ (2021) 23(2) Interventions 227
Bradley, Megan, ‘Resolving Refugee Situations: Seeking Solutions Worthy of the Name’ (Research Paper No 9, World Refugee Council, March 2019)
Carciotto, Sergio and Filippo Ferraro, ‘Building Blocks and Challenges for the Implementation of the Global Compact on Refugees in Africa’ (2020) 8(1) Journal on Migration and Human Security 83
Chimni, B S, ‘Global Compact on Refugees: One Step Forward, Two Steps Back’ (2018) 30(4) International Journal of Refugee Law 630
Costello, Cathryn, ‘Overcoming Refugee Containment and Crisis’ (2020) 21 German Law Journal 17
Crisp, Jeff, ‘The local integration and local settlement of refugees: a conceptual and historical analysis’ (Working Paper No 2, UNHCR, April 2004)
d’Orsi, Cristiano, ‘A look at global changes in refugee policies through the lens of Dadaab’, The Conversation (online, 19 June 2020) <https://theconversation.com/a-look-at-global-changes-in-refugee-policies-through-the-lens-of-dadaab-140955>
Dick, Eva and Markus Rudolf, ‘How the Global Compact on Refugees can be implemented successfully’, German Development Institute: The Current Column (online), 16 December 2019 <https://www.die-gdi.de/en/the-current-column/article/how-the-global-compact-on-refugees-can-be-implemented-successfully/>
Dowd, Rebecca and Jane McAdam, ‘International Cooperation and Responsibility-Sharing to Protect Refugees: What, Why and How?’ (2017) 66 International and Comparative Law Quarterly 863
Doyle, Michael and Elie Peltz, ‘Finding Refuge through Employment: Worker Visas as a Complementary Pathway for Refugee Resettlement’ (2020) 34(4) Ethics & International Affairs 433
Draper, Jamie, ‘Domination and misframing in the refugee regime’ (2020) Critical Review of International Social and Political Philosophy 1
Drozdowski, Hayley and Mark Yarnell, ‘Promoting Refugee Participation in the Global Refugee Forum: Walking the Walk’ (Issue Brief, Refugees International, July 2019)
Espinoza, Marcia Vera, ‘The Limits and Opportunities of Regional Solidarity: Exploring Refugee Resettlement in Brazil and Chile’ (2018) 9(1) Global Policy 85
Eylemer, Sedef and Nagihan Söylemez, ‘Policy versus Praxis: Has the European Union Failed to Respond to the Refugee Crisis?’ (2020) World Affairs 183(4) 315
Fielden, Alexandra, ‘Local integration: an under-reported solution to protracted refugee situations’ (Research Paper No 158, UNHCR, June 2008) 1
Gammeltoft-Hansen, Thomas, ‘The Normative Impact of the Global Compact on Refugees’ (2019) 30(4) International Journal of Refugee Law 605
Garlick, Madeline, ‘The Sharing of Responsibilities for the International Protection of Refugees’ in Cathryn Costello, Michelle Foster and Jane McAdam (eds), The Oxford Handbook of International Refugee Law (Oxford University Press, 2021) 463
Garlick, Madeline and Claire Inder, ‘Protection of refugees and migrants in the era of the global compacts’ (2021) 23(2) Interventions 207
Gilbert, Geoff, ‘Not Bound but Committed: Operationalizing the Global Compact on Refugees’ (2019) 57(6) International Migration 27
Gleichert, Emily, ‘Global Apathy and the Need for a New, Cooperative International Refugee Response’ (2020) 16 Northwestern Journal of Law and Social Policy 119
Goodwin-Gill, Guy S and Jane McAdam, The Refugee in International Law (Oxford University Press, 3rd ed, 2007
Hansen, Randall, ‘The Comprehensive Refugee Response Framework: A Commentary’ (2018) 31(2) Journal of Refugee Studies 131
Harley, Tristan, ‘Global Compact on Refugees: Opportunities for Australian reform and leadership?’ (2019) 90(4) Australian Quarterly 36
Hathaway, James C, ‘The Global Cop-Out on Refugees’ (2019) 30(4) International Journal of Refugee Law 591
Jacobsen, Karen M ‘The forgotten solution: local integration for refugees in developing countries’ (Working Paper No 45, UNHCR, July 2001)
Kalicki, Konrad, ‘Japan’s Liberal-Democratic Paradox of Refugee Admission’ (2019) 78(2) Journal of Asian Studies 355
Khan, Fatima and Cecile Sackeyfio, ‘What Promise Does the Global Compact on Refugees Hold for African Refugees?’ (2018) 30(4) International Journal of Refugee Law 696
Khan, Fatima, Siphokazi Mbatani and Charlotte Marais, ‘Trusting Democracy: The Law Can Work for Refugees, but what the System Needs Is an “Injection of Humanity”’ (2021) 56(1) Journal of Asian and African Studies 48
Lutz, Philipp, David Kaufmann and Anna Stünzi, ‘Humanitarian Protection as a European Public Good: The Strategic Role of States and Refugees’ (2020) 58(3) Journal of Common Market Studies 757
Maple, Nicholas, Susan Reardon-Smith and Richard Black, ‘Immobility and the containment of solutions: Reflections on the Global Compacts, Mixed Migration and the Transformation of Protection’ (2021) 23(2) Interventions 326
McAdam, Jane ‘The Global Compacts on Refugees and Migration: A New Era for International Protection?’ (2018) 30(4) International Journal of Refugee Law 571
McAdam, Jane and Tamara Wood, ‘The Concept of “International Protection” in the Global Compacts on Refugees and Migration’ (2021) 23 Interventions 191
Mencutek, Zeynep Sahin, ‘Refugee community organisations: capabilities, interactions and limitations’ (2021) 42(1) Third World Quarterly 181
Nicholson, Francis and Judith Kumin, ‘A guide to international refugee protection and building state asylum systems’ (Handbook for Parliamentarians No 27, Inter-Parliamentary Union and UNHCR, 2017)
Pincock, Kate, Alexander Betts and Evan Easton-Calabria, ‘The Rhetoric and Reality of Localisation: Refugee-Led Organisations in Humanitarian Governance’ (2021) 57(5) Journal of Development Studies 719
Roper, Steven D and Lilian A Barria, ‘Burden Sharing in the Funding of the UNHCR: Refugee Protection as an Impure Public Good’ (2010) 54(4) Journal of Conflict Resolution 616
Rutinwa, Bonaventure, ‘The end of asylum? The changing nature of refugee policies in Africa’ (Working Paper No 5, UNHCR, May 1999)
Sharpe, Marina, ‘The Global Compact on Refugees and Conflict Prevention in Africa: ‘Root Causes’ and Yet Another Divide’ (2018) 30(4) International Journal of Refugee Law 707
Squire, Vicki, ‘A milestone missed: the global compact on migration and the limits of solidarity’ (2019) 5(2) Global Affairs 155
Talent Beyond Boundaries, ‘Labour Mobility Pathways Pilot 2016-2019’ (Global Evaluation Report, Talent Beyond Boundaries, 1 June 2020)
Thielemann, Eiko R, ‘Why Asylum Policy Harmonisation Undermines Refugee Burden-Sharing’ (2004) 6 European Journal of Migration and Law 47
Triggs, Gillian D and Patrick C J Wall, ‘“The Makings of a Success”: The Global Compact on Refugees and the Inaugural Global Refugee Forum’ (2020) 32(2) International Journal of Refugee Law 283
Tubakovic, Tamara, ‘The failure of regional refugee protection and responsibility sharing: Policy neglect in the EU and ASEAN’ (2019) 28(2) Asian and Pacific Migration Journal 183
Türk, Volker and Madeline Garlick, ‘From Burdens and Responsibilities to Opportunities: The Comprehensive Refugee Response Framework and a Global Compact on Refugees’ (2016) 28(4) International Journal of Refugee Law 656
Uçarer, Emek M, ‘Burden-Shirking, Burden-Shifting, and Burden-Sharing in the Emergent European Asylum Regime’ (2006) 43 International Politics 219
van Krieken, Peter, ‘Repatriation of Refugees under International Law’ (1982) 13 Netherlands Yearbook of International Law 93
van Selm, Joanne, ‘Complementary Pathways to Protection: Promoting the Integration and Inclusion of Refugees in Europe?’ (2020) 690 The Annals of the American Academy of Political and Social Science 136
Wood, Tamara, ‘The role of ‘complementary pathways’ in refugee protection’ (Report, Kaldor Centre for International Refugee Law, 23 November 2020)
B Treaties
Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) read together with the Protocol Relating to the Status of Refugees, opened for signature 19 December 1966, 606 UNTS 267 (entered into force 4 October 1967)
Organization of Africa Unity (OAU), Convention Governing the Specific Aspects of Refugee Problems in Africa, opened for signature 10 September 1969, 1001 UNTS 45 (entered into force 20 June 1974)
Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, 1155 UNTS 331 (entered into force 27 January 1980)
C UN Material
Charter of the United Nations, opened for signature 26 June 1945, 1 UNTS 16 (entered into force 24 October 1945)
Division of International Protection, United Nations High Commissioner for Refugees, UNHCR Resettlement Handbook (July 2011)
Executive Committee of the High Commissioner’s Programme, Conclusion on Local Integration No. 104 (LVI), UN GAOR, 56th sess, UN Doc A/AC.96/1021 (7 October 2005)
Executive Committee of the High Commissioner’s Programme, Durable Solutions and Refugee Protection No. 56 (XL), UN GAOR, 40th sess, UN Doc A/44/12 and Add.1 (13 October 1989)
Global Compact on Refugees, UN GAOR, 73rd sess, 2nd pt, Supp No 12, UN Doc A/73/12 (13 September 2018)
New York Declaration for Refugees and Migrants, UN GAOR, 71st sess, Agenda Items 13 and 118, UN Doc A/71/L.1 (13 September 2016)
Statute of the Office of the United Nations High Commissioner for Refugees, UN GAOR, 5th sess, UN Doc A/RES/428(V) (14 December 1950)
UNHCR, ‘Bringing the New York Declaration to Life: Applying the Comprehensive Refugee Response Framework (CRRF)’ (January 2018) <https://www.unhcr.org/en-au/events/
conferences/593e5ce27/bringing-new-york-declaration-life-applying-comprehensive-refugee-response.html>
UNHCR, ‘Complementary Pathways for Admission of Refugees to Third Countries: Key Considerations’ (April 2019) <https://www.refworld.org/docid/5cebf3fc4.html>
UNHCR, ‘Framework for Durable Solutions for Refugees and Persons of Concern’ (May 2003) <https://www.refworld.org/docid/4124b6a04.html>
UNHCR, ‘Kenya Comprehensive Refugee Programme 2019-2020’ (2019)
UNHCR, ‘Outcomes of the Global Refugee Forum 2019’ (2019) <https://www.unhcr.org/
events/conferences/5ecd458c4/outcomes-global-refugee-forum-2019.html>
UNHCR, ‘Three-Year Strategy on Resettlement and Complementary Pathways’ (June 2019) <https://www.unhcr.org/en-au/protection/resettlement/5d15db254/three-year-strategy-resettlement-complementary-pathways.html>
UNHCR, ‘Preliminary Outcomes of the Stocktaking on the Global Compact on Refugees by Theme’ (3 August 2021) <https://globalcompactrefugees.org/article/preliminary-outcomes-stocktaking-global-compact-refugees>
UNHCR, Report of the 56th session of the Executive Committee of the High Commissioner’s Programme, UN GAOR, 56th sess, UN Doc A/AC.96/1021 (7 October 2005)
D Other
Gnanakaran, Sathya, The Australian Skilled Refugee Labour Agreement Pilot (29 July 2021) Talent Beyond Boundaries <https://www.talentbeyondboundaries.org/blog/introducing-the-australian-skilled-refugee-pilot>
Higgins, Claire, Complementary refugee pathways: Protected entry schemes (15 March 2021) Kaldor Centre for International Refugee Law <https://www.kaldorcentre.unsw.edu.au/
publication/incountry-processing-and-other-protected-entry-procedures>
Higgins, Claire, Corridors of hope: What one Italian ‘lifeline’ delivers (23 September 2019) Kaldor Centre for International Refugee Law <https://www.kaldorcentre.unsw.edu.au/news/
corridors-hope-what-one-italian-‘lifeline’-delivers>
Hoang, Khanh, ‘Risks and rewards of private humanitarian and refugee sponsorship’, Lowy Interpreter (online), 16 May 2017 <https://www.lowyinstitute.org/the-interpreter/risks-and-rewards-private-humanitarian-and-refugee-sponsorship>
Humanitarian Corridors, The Humanitarian Corridors <https://www.humanitariancorridor.
org/en/homepage/>
Japan International Cooperation Agency, Japanese Initiative for the future of Syrian Refugees (JISR) (2021) <https://www.jica.go.jp/syria/english/office/others/jisr.html>
Karasapan, Omer, Sharing the burden of the global refugee crisis (27 January 2020) Brookings Institution <https://www.brookings.edu/blog/futuredevelopment/2020/01/27/
sharing-the-burden-of-the-global-refugee-crisis/>
Kirişci, Kemal, The 1951 Refugee Convention is falling short of its mission. Could the Global Compact on Refugees help? (26 July 2021) Brookings Institution <https://www.brookings.
edu/blog/order-from-chaos/2021/07/26/the-1951-refugee-convention-is-falling-short-of-its-mission-could-the-global-compact-on-refugees-help/
Refugee Council of Australia, Durable solutions (25 January 2019) <https://www.refugee
council.org.au/durable-solutions/>
Talent Beyond Boundaries, Life-changing results<https://www.talentbeyondboundaries.
org/impact>
UNHCR, Burden and Responsibility Sharing (May 2020) Global Refugee Forum Factsheet <https://www.unhcr.org/en-au/5de682284>
UNHCR, Figures at a Glance <https://www.unhcr.org/en-au/figures-at-a-glance.htm>
UNHCR, Global Report 2020 <https://www.unhcr.org/flagship-reports/globalreport/>
UNHCR, Global Trends: Forced Displacement in 2020 (June 2021) <https://www.unhcr.org/
en-au/statistics/unhcrstats/60b638e37/global-trends-forced-displacement-2020.html>
UNHCR, Government of Zambia appeals for funding to support refugees (26 February 2019) <https://reliefweb.int/report/zambia/government-zambia-appeals-funding-support-refugees>
UNHCR, Government partners <https://www.unhcr.org/en-au/donors.html>
UNHCR, Japan ICU Foundation Scholarship (11 May 2021) <https://help.unhcr.org/turkey/
2021/05/11/japan-icu-foundation-scholarship/>
UNHCR, Local Integration <https://www.unhcr.org/en-au/local-integration49c3646c101.
html>
UNHCR, Pledges & Contributions Dashboard (August 2021) <https://globalcompact
refugees.org/channel/pledges-contributions>
UNHCR, Refugee Data Finder (18 June 2021) <https://www.unhcr.org/refugee-statistics/>
UNHCR, Resettlement <https://www.unhcr.org/en-au/resettlement.html>
UNHCR, Successes, challenges and progress: the impact of pledges on the lives of refugees and host communities (16 September 2020) <https://globalcompactrefugees.org/article/
successes-challenges-and-progress-impact-pledges-lives-refugees-and-host-communities>
UNHCR, United States of America <https://reporting.unhcr.org/donors-usa>
[1] Guy S Goodwin-Gill and Jane McAdam, The Refugee in International Law (Oxford University Press, 3rd ed, 2007) 489.
[2] Refugee Council of Australia, Durable solutions (25 January 2019) <https://www.refugeecouncil.org.au/durable-solutions/>.
[3] UNHCR, Figures at a Glance <https://www.unhcr.org/en-au/figures-at-a-glance.htm>.
[4] Michael Doyle and Elie Peltz, ‘Finding Refuge through Employment: Worker Visas as a Complementary Pathway for Refugee Resettlement’ (2020) 34(4) Ethics & International Affairs 433, 434.
[5] New York Declaration for Refugees and Migrants, UN GAOR, 71st sess, Agenda Items 13 and 118, UN Doc A/71/L.1 (13 September 2016) (‘New York Declaration’).
[6] Global Compact on Refugees, UN GAOR, 73rd sess, 2nd pt, Supp No 12, UN Doc A/73/12 (13 September 2018) (‘GCR’).
[7] Tamara Wood, ‘The role of ‘complementary pathways’ in refugee protection’ (Report, Kaldor Centre for International Refugee Law, 23 November 2020) 2 [1].
[8] Kevin Appleby, ‘Strengthening the Global Refugee Protection System: Recommendations for the Global Compact on Refugees’ (2017) 5(4) Journal on Migration and Human Security 780, 792.
[9] Goodwin-Gill and McAdam (n 1) 489.
[10] Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) read together with the Protocol Relating to the Status of Refugees, opened for signature 19 December 1966, 606 UNTS 267 (entered into force 4 October 1967) (‘Refugee Convention’).
[11] Executive Committee of the High Commissioner’s Programme, Durable Solutions and Refugee Protection No. 56 (XL), UN GAOR, 40th sess, UN Doc A/44/12 and Add.1 (13 October 1989) Preamble para 1.
[12] Statute of the Office of the United Nations High Commissioner for Refugees, UN GAOR, 5th sess, UN Doc A/RES/428(V) (14 December 1950) (‘UNHCR Statute’).
[13] Ibid annex art 1.
[14] Peter van Krieken, ‘Repatriation of Refugees under International Law’ (1982) 13 Netherlands Yearbook of International Law 93, 95.
[15] Jobair Alam, ‘The Status and Rights of the Rohingya as Refugees under International Refugee Law: Challenges for a Durable Solution’ (2021) 19(2) Journal of Immigration & Refugee Studies 128, 134.
[16] Susan M Akram, ‘UNRWA and Palestine Refugees’ in Cathryn Costello, Michelle Foster and Jane McAdam (eds), The Oxford Handbook of International Refugee Law (Oxford University Press, 2021) 643, 658.
[17] Megan Bradley, ‘Resolving Refugee Situations: Seeking Solutions Worthy of the Name’ (Research Paper No 9, World Refugee Council, March 2019) 1; UNHCR, Report of the 56th session of the Executive Committee of the High Commissioner’s Programme, UN GAOR, 56th sess, UN Doc A/AC.96/1021 (7 October 2005) para 22.
[18] Goodwin-Gill and McAdam (n 1) 496.
[19] Refugee Convention (n 10) art 1(c).
[20] Refugee Council of Australia, Durable solutions (25 January 2019) <https://www.refugeecouncil.org.au/durable-solutions/>.
[21] Goodwin-Gill and McAdam (n 1) 496.
[22] Alam (n 15) 135.
[23] Emily Gleichert, ‘Global Apathy and the Need for a New, Cooperative International Refugee Response’ (2020) 16 Northwestern Journal of Law and Social Policy 119, 127.
[24] Ibid.
[25] UNHCR, Global Report 2020
<https://www.unhcr.org/flagship-reports/globalreport/>.
[26] Executive Committee of the High Commissioner’s Programme, Conclusion on Local Integration No. 104 (LVI), UN GAOR, 56th sess, UN Doc A/AC.96/1021 (7 October 2005) para (k).
[27] UNHCR, Local Integration <https://www.unhcr.org/en-au/local-integration-49c3646c101.html>; Alam (n 15) 136; Jeff Crisp, ‘The local integration and local settlement of refugees: a conceptual and historical analysis’ (Working Paper No 2, UNHCR, April 2004) 1-2.
[28] Alexandra Fielden, ‘Local integration: an under-reported solution to protracted refugee situations’ (Research Paper No 158, UNHCR, June 2008) 1; Crisp (n 27) 1.
[29] Francis Nicholson and Judith Kumin, ‘A guide to international refugee protection and building state asylum systems’ (Handbook for Parliamentarians No 27, Inter-Parliamentary Union and UNHCR, 2017) 65, 68.
[30] Refugee Convention (n 10) art 34; Crisp (n 27) 3.
[31] Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, 1155 UNTS 331 (entered into force 27 January 1980) arts 26, 31.
[32] Karen Jacobsen, ‘The forgotten solution: local integration for refugees in developing countries’ (Working Paper No 45, UNHCR, July 2001) 2.
[33] UNHCR, Figures at a Glance <https://www.unhcr.org/en-au/figures-at-a-glance.htm>.
[34] Fielden (n 28) 3.
[35] Gleichert (n 23) 126.
[36] Jacobsen (n 32) 3.
[37] UNHCR, ‘Framework for Durable Solutions for Refugees and Persons of Concern’ (May 2003) 5 [12] <https://www.refworld.org/docid/4124b6a04.html>.
[38] Alam (n 15) 136.
[39] Jacobsen (n 32) 2.
[40] Bonaventure Rutinwa, ‘The end of asylum? The changing nature of refugee policies in Africa’ (Working Paper No 5, UNHCR, May 1999) 15.
[41] UNHCR, Resettlement <https://www.unhcr.org/en-au/resettlement.html>.
[42] Statute of the Office of the United Nations High Commissioner for Refugees, UN GAOR, 5th sess, UN Doc A/RES/428(V) (14 December 1950) annex para 9.
[43] Division of International Protection, United Nations High Commissioner for Refugees, UNHCR Resettlement Handbook (July 2011) 49; Goodwin-Gill and McAdam, (n 1) 498.
[44] Division of International Protection, United Nations High Commissioner for Refugees, UNHCR Resettlement Handbook (July 2011) 53.
[45] UNHCR, ‘Three-Year Strategy on Resettlement and Complementary Pathways’ (June 2019) 6, 8 <https://www.unhcr.org/en-au/protection/resettlement/5d15db254/three-year-strategy-resettlement-complementary-pathways.html>.
[46] Marcia Vera Espinoza, ‘The Limits and Opportunities of Regional Solidarity: Exploring Refugee Resettlement in Brazil and Chile’ (2018) 9(1) Global Policy 85, 86.
[47] Alexander Betts, Protection by Persuasion: International Cooperation in the Refugee Regime (Cornell University Press, 2009), cited in Marcia Vera Espinoza, ‘The Limits and Opportunities of Regional Solidarity: Exploring Refugee Resettlement in Brazil and Chile’ (2018) 9(1) Global Policy 85, 86.
[48] UNHCR, Resettlement <https://www.unhcr.org/en-au/resettlement.html>.
[49] Cathryn Costello, ‘Overcoming Refugee Containment and Crisis’ (2020) 21 German Law Journal 17, 17.
[50] UNHCR, Global Trends: Forced Displacement in 2020 (June 2021) <https://www.unhcr.org/en-au/statistics/unhcrstats/60b638e37/global-trends-forced-displacement-2020.html>.
[51] Gleichert (n 23) 125.
[52] Bradley (n 17) 1–2.
[53] Alexander Betts, ‘Resettlement: where’s the evidence, what’s the strategy?’ (2017) 54 Forced Migration Review 73, 73–74.
[54] UNHCR, ‘Kenya Comprehensive Refugee Programme 2019-2020’ (2019) 5.
[55] UNHCR, ‘Framework for Durable Solutions for Refugees and Persons of Concern’ (May 2003) 6 [13] <https://www.refworld.org/docid/4124b6a04.html>.
[56] Ibid 5 [12].
[57] Charter of the United Nations, opened for signature 26 June 1945, 1 UNTS 16 (entered into force 24 October 1945) art 1(3).
[58] Jane McAdam and Tamara Wood, ‘The Concept of “International Protection” in the Global Compacts on Refugees and Migration’ (2021) 23 Interventions 191, 201.
[59] Refugee Convention (n 10) Preamble para 4.
[60] Organization of Africa Unity (OAU), Convention Governing the Specific Aspects of Refugee Problems in Africa, opened for signature 10 September 1969, 1001 UNTS 45 (entered into force 20 June 1974) art 2(4).
[61] GCR, UN Doc A/73/12 (n 6) para 7.
[62] Ibid para 33.
[63] Geoff Gilbert, ‘Not Bound but Committed: Operationalizing the Global Compact on Refugees’ (2019) 57(6) International Migration 27, 27.
[64] GCR, UN Doc A/73/12 (n 6) para 85; Marina Sharpe, ‘The Global Compact on Refugees and Conflict Prevention in Africa: ‘Root Causes’ and Yet Another Divide’ (2018) 30(4) International Journal of Refugee Law 707, 710.
[65] Volker Türk and Madeline Garlick, ‘From Burdens and Responsibilities to Opportunities: The Comprehensive Refugee Response Framework and a Global Compact on Refugees’ (2016) 28(4) International Journal of Refugee Law 656, 676.
[66] See, eg, James C Hathaway, ‘The Global Cop-Out on Refugees’ (2019) 30(4) International Journal of Refugee Law 591, 604.
[67] Madeline Garlick and Claire Inder, ‘Protection of refugees and migrants in the era of the global compacts’ (2021) 23(2) Interventions 207, 213.
[68] GCR, UN Doc A/73/12 (n 6) paras 3, 9, 17, 48, 104; McAdam and Wood (n 58) 202.
[69] Thomas Gammeltoft-Hansen, ‘The Normative Impact of the Global Compact on Refugees’ (2019) 30(4) International Journal of Refugee Law 605, 606; GCR, UN Doc A/73/12 (n 6) para 4.
[70] François Boucher and Johanna Gördemann, ‘The European Union and the Global Compacts on Refugees and Migration: A Philosophical Critique’ (2021) 23(2) Interventions 227, 228.
[71] Jane McAdam, ‘The Global Compacts on Refugees and Migration: A New Era for International Protection?’ (2018) 30(4) International Journal of Refugee Law 571, 573.
[72] Fatima Khan and Cecile Sackeyfio, ‘What Promise Does the Global Compact on Refugees Hold for African Refugees?’ (2018) 30(4) International Journal of Refugee Law 696, 698.
[73] See, eg, UNHCR, ‘Kenya Comprehensive Refugee Programme 2019-2020’ (2019) 6.
[74] New York Declaration, UN Doc A/71/L.1 (n 5) annex I; Randall Hansen, ‘The Comprehensive Refugee Response Framework: A Commentary’ (2018) 31(2) Journal of Refugee Studies 131, 132.
[75] UNHCR, ‘Bringing the New York Declaration to Life: Applying the Comprehensive Refugee Response Framework (CRRF)’ (January 2018) 1 <https://www.unhcr.org/en-au/events/conferences/593e5ce27/bringing-
new-york-declaration-life-applying-comprehensive-refugee-response.html>.
[76] Sergio Carciotto and Filippo Ferraro, ‘Building Blocks and Challenges for the Implementation of the Global Compact on Refugees in Africa’ (2020) 8(1) Journal on Migration and Human Security 83, 87.
[77] Khan and Sackeyfio (n 72) 697.
[78] GCR, UN Doc A/73/12 (n 6) paras 11–100. See also UNHCR, ‘Kenya Comprehensive Refugee Programme 2019-2020’ (2019) 6.
[79] GCR, UN Doc A/73/12 (n 6) para 17.
[80] Gleichert (n 23) 129.
[81] UNHCR, Pledges & Contributions Dashboard (August 2021) <https://globalcompactrefugees.org/
channel/pledges-contributions>.
[82] UNHCR, Successes, challenges and progress: the impact of pledges on the lives of refugees and host communities (16 September 2020) <https://globalcompactrefugees.org/article/successes-challenges-and-progress-impact-pledges-lives-refugees-and-host-communities>.
[83] Rebecca Dowd and Jane McAdam, ‘International Cooperation and Responsibility-Sharing to Protect Refugees: What, Why and How?’ (2017) 66 International and Comparative Law Quarterly 863, 877.
[84] UNHCR, ‘Complementary Pathways for Admission of Refugees to Third Countries: Key Considerations’ (April 2019) 5 <https://www.refworld.org/docid/5cebf3fc4.html>.
[85] Wood (n 7) 5.
[86] Khanh Hoang, ‘Risks and rewards of private humanitarian and refugee sponsorship’, Lowy Interpreter (online), 16 May 2017 <https://www.lowyinstitute.org/the-interpreter/risks-and-rewards-private-humanitarian-and-refugee-sponsorship>.
[87] Joanne van Selm, ‘Complementary Pathways to Protection: Promoting the Integration and Inclusion of Refugees in Europe?’ (2020) 690 The Annals of the American Academy of Political and Social Science 136, 150.
[88] Garlick and Inder (n 67) 213.
[89] UNHCR, ‘Complementary Pathways for Admission of Refugees to Third Countries: Key Considerations’ (April 2019) 5 <https://www.refworld.org/docid/5cebf3fc4.html>.
[90] Claire Higgins, Complementary refugee pathways: Protected entry schemes (15 March 2021) Kaldor Centre for International Refugee Law <https://www.kaldorcentre.unsw.edu.au/publication/incountry-processing-and-other-protected-entry-procedures>.
[91] Humanitarian Corridors, The Humanitarian Corridors <https://www.humanitariancorridor.org/en/
homepage/>; Claire Higgins, Corridors of hope: What one Italian ‘lifeline’ delivers (23 September 2019) Kaldor Centre for International Refugee Law <https://www.kaldorcentre.unsw.edu.au/news/corridors-hope-what-one-italian-‘lifeline’-delivers>.
[92] Talent Beyond Boundaries, Life-changing results <https://www.talentbeyondboundaries.org/impact>.
[93] Talent Beyond Boundaries, ‘Labour Mobility Pathways Pilot 2016-2019’ (Global Evaluation Report, Talent Beyond Boundaries, 1 June 2020) 45–6.
[94] Sathya Gnanakaran, The Australian Skilled Refugee Labour Agreement Pilot (29 July 2021) Talent Beyond Boundaries <https://www.talentbeyondboundaries.org/blog/introducing-the-australian-skilled-refugee-pilot>.
[95] Japan International Cooperation Agency, Japanese Initiative for the future of Syrian Refugees (JISR) (2021) <https://www.jica.go.jp/syria/english/office/others/jisr.html>; UNHCR, Japan ICU Foundation Scholarship (11 May 2021) <https://help.unhcr.org/turkey/2021/05/11/japan-icu-foundation-scholarship/>.
[96] Konrad Kalicki, ‘Japan’s Liberal-Democratic Paradox of Refugee Admission’ (2019) 78(2) Journal of Asian Studies 355, 365.
[97] Ibid 355.
[98] GCR, UN Doc A/73/12 (n 6) para 100.
[99] Ibid paras 94–96.
[100] Gleichert (n 23) 129.
[101] UNHCR, ‘Kenya Comprehensive Refugee Programme 2019-2020’ (2019) 5.
[102] Türk and Garlick (n 65) 676.
[103] Madeline Garlick, ‘The Sharing of Responsibilities for the International Protection of Refugees’ in Cathryn Costello, Michelle Foster and Jane McAdam (eds), The Oxford Handbook of International Refugee Law (Oxford University Press, 2021) 463, 480.
[104] Khan and Sackeyfio (n 72) 696.
[105] Ibid 698.
[106] Eva Dick and Markus Rudolf, ‘How the Global Compact on Refugees can be implemented successfully’, German Development Institute: The Current Column (online), 16 December 2019 <https://www.die-gdi.de/en/the-current-column/article/how-the-global-compact-on-refugees-can-be-implemented-successfully/>.
[107] GCR, UN Doc A/73/12 (n 6) paras 1, 4, 9, 23, 32, 64.
[108] UNHCR, ‘Kenya Comprehensive Refugee Programme 2019-2020’ (2019) 5.
[109] GCR, UN Doc A/73/12 (n 6) para 1.
[110] Garlick and Inder (n 67) 212.
[111] Gammeltoft-Hansen (n 69) 610.
[112] Hathaway (n 66) 595, 604.
[113] Khan and Sackeyfio (n 72) 697. See also New York Declaration, UN Doc A/71/L.1 (n 5) para 14.
[114] GCR, UN Doc A/73/12 (n 6) para 3.
[115] Ibid paras 33–34; B S Chimni, ‘Global Compact on Refugees: One Step Forward, Two Steps Back’ (2018) 30(4) International Journal of Refugee Law 630, 633.
[116] 1951 Refugee Convention (n 10) Preamble para 4.
[117] Khan and Sackeyfio (n 72) 696.
[118] GCR, UN Doc A/73/12 (n 6) para 3; Garlick (n 103) 481.
[119] UNHCR, ‘Kenya Comprehensive Refugee Programme 2019-2020’ (2019) 13.
[120] UNHCR, ‘Outcomes of the Global Refugee Forum 2019’ (2019) 13 <https://www.unhcr.org/events/conferences/5ecd458c4/outcomes-global-refugee-forum-2019.html>; Hayley Drozdowski and Mark Yarnell, ‘Promoting Refugee Participation in the Global Refugee Forum: Walking the Walk’ (Issue Brief, Refugees International, July 2019) 3.
[121] Hathaway (n 66) 604.
[122] Gilbert (n 63) 38.
[123] Gleichert (n 23) 129, 139.
[124] McAdam (n 71) 574; Gillian D Triggs and Patrick C J Wall, ‘“The Makings of a Success”: The Global Compact on Refugees and the Inaugural Global Refugee Forum’ (2020) 32(2) International Journal of Refugee Law 283, 283.
[125] UNHCR, ‘Three-Year Strategy on Resettlement and Complementary Pathways’ (June 2019), 6
<https://www.unhcr.org/en-au/protection/resettlement/5d15db254/three-year-strategy-resettlement-complementary-pathways.html>.
[126] Gleichert (n 23) 119.
[127] Hansen (n 73) 145.
[128] Emek M Uçarer, ‘Burden-Shirking, Burden-Shifting, and Burden-Sharing in the Emergent European Asylum Regime’ (2006) 43 International Politics 219, 224.
[129] Tristan Harley, ‘Global Compact on Refugees: Opportunities for Australian reform and leadership?’ (2019) 90(4) Australian Quarterly 36, 40.
[130] Alam (n 15) 134.
[131] UNHCR, Refugee Data Finder (18 June 2021) <https://www.unhcr.org/refugee-statistics/>.
[132] Alam (n 15) 137.
[133] Ibid 138.
[134] GCR, UN Doc A/73/12 (n 6) para 18.
[135] Ibid para 23.
[136] Ibid para 37.
[137] Carciotto and Ferraro (n 76) 93.
[138] UNHCR, ‘Kenya Comprehensive Refugee Programme 2019-2020’ (2019) 11.
[139] GCR, UN Doc A/73/12 (n 6) para 18.
[140] Gleichert (n 23) 129.
[141] Gammeltoft-Hansen (n 69) 608.
[142] UNHCR, Burden and Responsibility Sharing (May 2020) Global Refugee Forum Factsheet, 3 <https://www.unhcr.org/en-au/5de682284>.
[143] GCR, UN Doc A/73/12 (n 6) para 4.
[144] Omer Karasapan, Sharing the burden of the global refugee crisis (27 January 2020) Brookings Institution <https://www.brookings.edu/blog/future-development/2020/01/27/sharing-the-burden-of-the-global-refugee-crisis/>.
[145] Harley (n 129) 40; Gleichert (n 23) 129.
[146] Steven D Roper and Lilian A Barria, ‘Burden Sharing in the Funding of the UNHCR: Refugee Protection as an Impure Public Good’ (2010) 54(4) Journal of Conflict Resolution 616, 631.
[147] Gleichert (n 23) 129.
[148] Hathaway (n 66) 598 (emphasis in original).
[149] van Selm (n 87) 149.
[150] Talent Beyond Boundaries, ‘Labour Mobility Pathways Pilot 2016-2019’ (Global Evaluation Report, Talent Beyond Boundaries, 1 June 2020) 45.
[151] Japan International Cooperation Agency, Japanese Initiative for the future of Syrian Refugees (JISR) (2021) <https://www.jica.go.jp/syria/english/office/others/jisr.html>.
[152] UNHCR, ‘Kenya Comprehensive Refugee Programme 2019-2020’ (2019) 11.
[153] Alexander Betts, Forced Migration and Global Politics (Wiley-Blackwell, 2009), cited in Nicholas Maple, Susan Reardon-Smith and Richard Black, ‘Immobility and the containment of solutions: Reflections on the Global Compacts, Mixed Migration and the Transformation of Protection’ (2021) 23(2) Interventions 326, 332.
[154] UNHCR, Government of Zambia appeals for funding to support refugees (26 February 2019) <https://reliefweb.int/report/zambia/government-zambia-appeals-funding-support-refugees>; Nicholas Maple, Susan Reardon-Smith and Richard Black, ‘Immobility and the containment of solutions: Reflections on the Global Compacts, Mixed Migration and the Transformation of Protection’ (2021) 23(2) Interventions 326, 332.
[155] Gleichert (n 23) 119.
[156] Ibid 125.
[157] UNHCR, Government partners <https://www.unhcr.org/enau/donors.html>.
[158] Gleichert (n 23) 123.
[159] Roper and Barria (n 146) 631.
[160] Gleichert (n 23) 130.
[161] Kalicki (n 96) 358.
[162] Alexander Betts, Catheryn Costello, and Natasha Zaun, ‘A Fair Share: Refugees and Responsibility-Sharing’ (Delmi Report, 2017) 80, cited in François Boucher and Johanna Gördemann, ‘The European Union and the Global Compacts on Refugees and Migration: A Philosophical Critique’ (2021) 23(2) Interventions 227, 236.
[163] UNHCR, Pledges & Contributions Dashboard (August 2021) <https://globalcompactrefugees.org/channel/pledges-contributions>.To locate the pledge from which this quote is taken from, search ‘European Union’ in the search bar of the interactive dashboard.
[164] Philipp Lutz, David Kaufmann and Anna Stünzi, ‘Humanitarian Protection as a European Public Good: The Strategic Role of States and Refugees’ (2020) 58(3) Journal of Common Market Studies 757, 757.
[165] Uçarer (n 128) 219.
[166] Sedef Eylemer and Nagihan Söylemez, ‘Policy versus Praxis: Has the European Union Failed to Respond to the Refugee Crisis?’ (2020) World Affairs 183(4) 315, 336.
[167] Tamara Tubakovic, ‘The failure of regional refugee protection and responsibility sharing: Policy neglect in the EU and ASEAN’ (2019) 28(2) Asian and Pacific Migration Journal 183, 183.
[168] Alexander Betts, ‘Institutional Proliferation and the Global Refugee Regime’ (2009) 7(1) Perspectives on Politics 53, 53.
[169] Appleby (n 8) 793.
[170] UNHCR, ‘Kenya Comprehensive Refugee Programme 2019-2020’ (2019) 17.
[171] Fatima Khan, Siphokazi Mbatani and Charlotte Marais, ‘Trusting Democracy: The Law Can Work for Refugees, but what the System Needs Is an “Injection of Humanity”’ (2021) 56(1) Journal of Asian and African Studies 48, 54–5.
[172] Ibid 58.
[173] Claire Higgins, Corridors of hope: What one Italian ‘lifeline’ delivers (23 September 2019) Kaldor Centre for International Refugee Law <https://www.kaldorcentre.unsw.edu.au/news/corridors-hope-what-one-italian-‘lifeline’-delivers>.
[174] Ibid.
[175] Gleichert (n 23) 122.
[176] Garlick and Inder (n 67) 221.
[177] Alam (n 15) 129.
[178] UNHCR, ‘Kenya Comprehensive Refugee Programme 2019-2020’ (2019) 35; Cristiano d’Orsi, ‘A look at global changes in refugee policies through the lens of Dadaab’, The Conversation (online, 19 June 2020) <https://theconversation.com/a-look-at-global-changes-in-refugee-policies-through-the-lens-of-dadaab-140955>.
[179] Khan, Mbatani and Marais (n 171) 54.
[180] Kalicki (n 96) 367.
[181] Zeynep Sahin Mencutek, ‘Refugee community organisations: capabilities, interactions and limitations’ (2021) 42(1) Third World Quarterly 181, 181.
[182] Kate Pincock, Alexander Betts and Evan Easton-Calabria, ‘The Rhetoric and Reality of Localisation: Refugee-Led Organisations in Humanitarian Governance’ (2021) 57(5) Journal of Development Studies 719, 720.
[183] Ibid 184.
[184] GCR, UN Doc A/73/12 (n 6) para 49.
[185] Ibid para 4.
[186] Ibid.
[187] Kalicki (n 96) 358; UNHCR, ‘Kenya Comprehensive Refugee Programme 2019-2020’ (2019) 5.
[188] Jamie Draper, ‘Domination and misframing in the refugee regime’ (2020) Critical Review of International Social and Political Philosophy 1, 3; Hansen (n 73) 145.
[189] Khan, Mbatani and Marais (n 171) 53.
[190] Kalicki (n 96) 358.
[191] GCR, UN Doc A/73/12 (n 6) para 1.
[192] Eiko R Thielemann, ‘Why Asylum Policy Harmonisation Undermines Refugee Burden-Sharing’ (2004) 6 European Journal of Migration and Law 47, 47–8.
[193] Harley (n 129) 42.
[194] Karasapan (n 144).
[195] UNHCR, United States of America <https://reporting.unhcr.org/donors-usa>.
[196] Gleichert (n 23) 128.
[197] Kemal Kirişci, The 1951 Refugee Convention is falling short of its mission. Could the Global Compact on Refugees help? (26 July 2021) Brookings Institution <https://www.brookings.edu/blog/order-from-chaos/2021/07/26/the-1951-refugee-convention-is-falling-short-of-its-mission-could-the-global-compact-on-refugees-help/>; Karasapan (n 144).
[198] Gleichert (n 23) 126.
[199] Boucher and Gördemann (n 70) 229.
[200] Vicki Squire, ‘A milestone missed: the global compact on migration and the limits of solidarity’ (2019) 5(2) Global Affairs 155, 160.
[201] Appleby (n 8) 785.
[202] Alam (n 15) 134.
[203] Boucher and Gördemann (n 70) 236.
[204] GCR, UN Doc A/73/12 (n 6) paras 14–100; Harley (n 129) 38.
[205] UNHCR, Pledges & Contributions Dashboard (August 2021) <https://globalcompactrefugees.org/channel/pledges-contributions>.
[206] Carciotto and Ferraro (n 76) 83.
[207] Espinoza (n 46) 92.
[208] UNHCR, ‘Preliminary Outcomes of the Stocktaking on the Global Compact on Refugees by Theme’ (3 August 2021) <https://globalcompactrefugees.org/article/preliminary-outcomes-stocktaking-global-compact-refugees>.
[209] Harley (n 129) 43.
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